Regency Soraj Infrastructures v. The Union of India & Ors

. V IN THE HIGH COURT OF DELHI AT NEW DELHI + WRIT PETITON (ClViL) NO 7699/2010 Reserved on: 22"^ November, 2011 % Date of Decision: 24^*" January, 2012 REGENCY SORAJ INFRASTRUCTURES ...Petitioner Through Mr. Porus F. Kaka, Sr. Advocate with Mr. Divesh Chawla, Mr. Arvind Gupta and Ms. Shiny Varghese, Advocates. VERSUS UNION OF INDIA & OTHERS Respondents Through Mr. A.S. Chandhiok, ASG with Ms. Sonia Mathur and Ms. Riya Kaul, Advocates for UOI. Mr. Kiran Babu, Sr. Standing Counsel for respondent Nos.3 and

¶4CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE R.V. EASWAR SAlMJiV KHANNA, J.: detailed order see W.P.(C) 13825/2009 titled Regency Soraj Infrastructures Vs. Union of India and Others pronounced today. •11^ (SANJIV KHANNA) <JUDGE ( R.V. EASWAR ) JUDGE 24"^ JANUARY, 2012 NA / IN THE HIGH COURT OF DELHI AT NEW DELHI + WRIT PETITON (CIVILE NOS. 13825/2009 & 7699/2010 Reserved on: 2T^ November. 2011 % Date of Decision:24^^Januarv. 2012 REGENCY SORAJ INFRASTRUCTURES ...Petitioner Througli Mr. Porus F. Kaka, Sr. Advocate with Mr. Divesh Chawla, Mr. Arvind Gupta and Ms. Shiny Varghese, Advocates. VERSUS UNION OF INDIA & OTHERS Respondents Through Mr. A.S. Chandhiok, ASG with Ms. Sonia Mathur and Ms. Riya Kaul, Advocates for UOI. Mr. Kiran Babu, Sr. Standing Counsel for respondent Nds.3 and

¶4CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE R.V. EASWAR SANJIV KHANNA. J.: The petitioner-Regency Soraj Infrastructuresis a joint venture between M/s FlowerValleyProperties and Buildconand M/s L.K. Corporation. Pursuantto permission granted by the DistrictIndustrialCentre vide letter dated January, 2005 and the commencementcertificatedated 7'^ January,2005 issued by the Pune Municipal Corporation, they have constructed Page ^ Information Technology Park named Metropolitant in Shivaji Nagar, Pune-Mumbai Road.

¶2On September, 2006, they filed an applicationwith the Ministry of Commerce and Industries for registration of the industrial park under the Industrial Park Scheme, 2002 (2002, Scheme, for short) to avail of benefits/exemption under Section 80IA of the Income Tax Act, 1961 (Act, for short). Thereafter, some correspondence was exchanged and information/details were furnished. The petitionerwas required and furnished vide letter dated 29'^ August, 2007 first and final completion certificate issued by Pune Municipal Corporation dated 29^^ August,2007. By letterdated 21'V22"^May, 2009, the petitioner was informedthat their case was considered by the Empowered Committee in their meeting held on 18^*^ September,2008 and since the date of commencementof park was after 31®' March, 2006, their application was not covered under the 2002, Scheme. The petitioner was asked to explain why the ajDplication should not be treated as closed being ineligible underthe 2002, Scheme. Attentionof the petitionerwas drawn to the IndustrialPark Scheme. 2008 (2008, Scheme) notified by the Central Board of Direct Taxes, Department of Revenue on W.P. (C) Nos. 13825/2009&7699/2010. ^of 25 8^'' January, 2008 in respect of parks whicli had come up on or after 1"'April,2006.

¶3The petitionersubmittedtheirjustificationdated 22"^^ June, 2009. However, vide letter dated 28*" July, 2009, the petitioner was informed that the 2002, Scheme which was administered by the Ministry of Commerce and Industries had ended on 31^' March, 2006. Thereafter,the 2008, Schemewas notifiedon 8*'' January,2008 and parks set up on or after 1®' April, 2006 but not later than 31®' March, 2009 were covered by the said scheme. The 2008, Scheme was notified by Central Board of Direct Taxes (CBDT). Therefore,the Departmentof Industrial Policy and Promotion under the Ministry of Commerce and Industries did not have mandate and was not the administering agency of the 2008, Scheme and the application of the petitioner was returned.

¶4The petitionerthereaftermoved an applicationbefore the CBDT dated 26*" June, 2009. The said application has been rejected vide letter dated 8'" October, 2009 on the ground that the park developed by the petitioner did not fulfil the requirementsof 2008, Schemeon the followingtwo accounts. Page3of 25

(i) The minimum requirement of constructed area in an industrial parl< under 2008, Scheme was 15000 square meters but the constructed area in the park of the petitioner was 10287.50 square metres.

(ii) The petitioner's park had only five units as against thirty units postulated and required under the 2008, Scheme. The term "industrial unit" as defined under 2008, Scheme means a separate and distinct entity assessable to tax • having a separate PAN.

¶5The petitionerherein has challengedthe order/letterdated 28^'' July, 2009 returning/rejectingtheir application under the 2002, Scheme and the order dated 8'^ October, 2009. It is submitted that the petitioner is entitled to registration under the 2002, Scheme and, therefore, eligible for exemption under Section 80 lA of the Act. In Writ Petition (Civil) No. 7699/2010, the petitionerhas also challengedthe assessmentorder dated 22"'' October, 2010 passed by Income Tax Officer, Pune denyingexemptionunderSection80 IA(4)(iii).

¶6In brief the contentions raised by the petitioner are as under: Page^of 25 \\

(1)0n reading of Section 80 iA(4)(iii) read with the proviso, the 2002, Scheme is applicable.

(2)The 2008, Scheme was introduced and implemented with effect from 1®' January, 2008 and being delegated legislation cannot be given retrospective effect. Section 80 lA does not permit retrospective delegated legislation.

(3)There is conflict between Section 80 IA(4)(iii) read with proviso, by which the date was extended upto March, 2009; and the 2008, Scheme as the said scheme postulates that it would be applicableto all industrialparks set up with effect from the date of commencement as defined in clause 2(f) .i.e. the date when the completion certificate was issued. The mandate of the Act prevails.

(4)Principle of promissory estoppel applies as the respondents had accepted that the 2002, Scheme would be applicable to the petitioner.

¶7In order to appreciate and decide the contentions; we are required to notice and consider Section 80 IA(4)(iii) and the provisothereto. Section80 IA(4)(iii)reads as under: Page5of 25 "Section 80-IA. Deductions in respect of profits and gains from industrial undertakings or enterprises engaged in infrastructure development, etc. XXX

(4) This section applies to— XXX (///) any undertaking which develops, develops and operates or maintains and operates an industrial park or special economic zone] notified by the Central Government in accordance with the scheme framed and notified by that Government for the period beginning on the 1st day of April, 1997 and ending on the 31st day of March, 2006: Provided that in a case where an undertaking develops an industrial park on or after the 1st day of April, 1999 or a special economiczone on or after the 1st day of April, 2001 and transfers the operation and maintenance of such industrial park or such special economic zone, as the case may be, to another undertaking(hereafter in this section referred to as the transferee undertaking), the deduction under sub-section (1), shall be allowed to such transferee undertaking for the remaining period in the ten consecutive assessment years as if the operation and maintenance were not so transferred to the transferee undertaking; Provided further that in the case of any undertaking which develops,developsand operates or maintainsand operates an industrialpark, the provisionsof this clause shall have effect as if for the figures, letters and words "31st day of March, 2006", the figures, letters and words "[the 31stday of March, 2011]" had been substituted"

¶8Section 80 lA was substituted by Finance Act, 1999. Section 80 IA(1) provides that where gross total income of an assessee includes profits and gains derived by an undertaking or an enterprisefrom a businessreferredto in sub-Section4, it would be allowed a deduction of an amount equal to 100% of 6of 25 profits and gains derived from tine specified business for the period stipulated. An undertakingwhich fulfils the requirements of clause (iii) of sub-section 4 to Section 80 lA is entitled to the said deduction. Clause (iii) stipulates that the undertaking which develops; develops and operates; or maintains and operates an industrial park or special economic zone qualifies for the said deduction provided it is notified by the Central Government in accordance with the scheme framed and notified by the Central Government for the period beginning April, 1997 and ending on 31®' IVlarch, 2006. For the sake of completeness, we may record that the date 31"' IVlarch, 2006 was substituted for the date 31'^ IVlarch, 2002 by Finance Act, 2001 with effect from 1 April, 2001.

¶9The second proviso to the clause

(iii) was incorporated/introducedby FinanceAct, 2006 with effectfrom 1 April, 2007 and the said proviso at the time when it was introduced was as under: "Provided further that in the case of any undertaking which develops, develops and operates or maintainsand operates an industrialpark, the provisionsof this clause shall have effect as if for the figures, letters and words "31st day of March, 2006", the figures, letters and words "31stday of March, 2009" had been substituted' st St WP. (C) Nos. 13825/2009&7699/2010 Page7of 25

¶10We may note here that the words "31"' Day of March, 2009" were substituted with the words "31®^ Day of March, 2011" vide FinanceAct No. 2 of2009 with retrospectiveeffectfrom 1^' April, 2009.

¶11in exercise of powers conferred under sub-section 4 to Section 80 lA, Ministry of Commerce and Industry had framed 2002, Scheme which was duly published in the Gazette of India Extraordinary being S.O. No. 354(E). The 2002, Scheme postulatedtwo modes ofgrantofapproval;(i)automaticapproval and (ii) non-automaticapproval. The petitioner's case was not covered by automaticapproval under the 2002, Scheme and no such claim is made in the petition. As noticed above, the petitionerhad filed an applicationdated 23'"'^ September,2006 under non-automatic approval mode. Non automatic application under the 2002, Scheme was to be examined by the EmpoweredCommitteeconstitutedunder clause 7 of the 2002, Scheme. Such applications were to be decided on case to case basis.

¶12It may be relevantto notice and reproduceclauses 3 and

9.1 of the 2002, Scheme, as these are relevant: Page8of 25 "3. Periodofoperationofthe scheme:- This scheme shall be applicablefor any undertakingwhich develops, develops and operates or maintains and operates an Industrialpark for the period beginningon the 1®' day of April, 1997 and endingon the 31®' day of March, 2006. In a case, where an undertakingdevelops an IndustrialPark on or after the 1®' day of April, 1999 and transfers the operation and maintenance of such Industrial Park to another undertaking (transferee undertaking), the benefits shall be allowed to such transferee undertaking for the remaining period in the ten consecutive assessment years in a manner as if the operation and maintenance were not so transferred to the transferee undertaking. xxxx

¶9General conditions'.(1) In case the commencing of the Industrial Model Town or Industrial Park or Growth Centre gets delayed by more than 1 year from the date indicated in the application, fresh approval may have to be obtained to get the benefits under the Act. This conditionalso applies to the existing approvals under the Industrial Park Scheme, which envisages commissioning of the Parks, latest by March, 31, 2002.

(2) The tax benefits under the Act can be availed only after the number of units indicated in the application, are located in the Industrial Park."

¶13The 2008, Scheme was published in the Gazette of India Extraordinary and is dated 8^*^ January, 2008. By another Gazette Notification also dated 8^^ January, 2008, CBDT substituted the existing Rule 18C of the Income Tax Rules, 1962, (1962, Rules) by a new Rule in exerciseof powers under Section 295 read with Section 80 IA(4)(iii)of the Act. The new Rule 18C reads as under: ^ ^5 \ "18C.(1) The undertaking shall begin to develop, develop and operate or maintain and operate an industrial park any time during the period beginning on the 1®' day of April, 2006, and ending on the 31®^ day of March, 2009.

(2) The undertaking and the Industrial Park shall be notified by the Central Government under the Industrial Park Scheme, 2008.

(3) The undertaking shall continue to fulfil the conditions envisaged in the Industrial Park Scheme, 2008." v\o

¶14The 2008, Scheme was formulated by the Ministry of Finance, Department of Revenue, CBDT. The relevant clauses of the said scheme, read as under; "1. Short title, commencement and application.- XXX

(2) It shall come into force on the date of its publication in the Official Gazette.

¶2Definitions,- XXX

(f) "date of commencement"means the date of obtaining the completioncertificateor occupation certificate, as the case may be, from the relevant local authority,certifying thereby that all the requireddevelopment activitiesfor the project have been completed; XXX

¶4Criteria for approval.-

(1)The date of commencementof the Industrial Park should be on or after the day of April 2006 and not later than 31®' of March 2009;"

¶15Before we deliberate and interpret the aforesaid provisions and examine the contentions of the petitioner, one aspect may W.P. (C)Nos.13825/2009&7699/2010 be clarified. Tlie petitioner does not dispute that they do not meet the prescribed parameters stipulated in the 2008, Scheme and do not satisfy the two conditions of the minimum constructed area and the number of units as stipulated in the 2008, Scheme. Thus, for the petitioner to succeed in the present writ petition, we have to hold that 2002, Scheme should be applied and it is in this context that the petitioner has raised the aforesaid four contentions.

¶16Section 80 IA(4)(iii) postulates and requires that there should be a scheme framed and notified by the Central Government and the undertaking in question which develops; develops and operates; or maintains and operates; an industrial park or special economic zone should have been notified under the said scheme. Clause (iii) to Section 80 iA(4), therefore, requires a scheme which is framed and also notified by the Central Government. This is a mandatory condition. In compliance with the said requirement, the Central Government had framed 2002, Scheme which was framed by the Ministryof Commerce and Industries and thereafter the 2008, Scheme which has been framed by Ministryof Finance, CBDT. Clause 3 of the 2002, Scheme is clear and categorical. The scheme shall be applicable to an undertaking whicli develops; develops and operates; or maintains or operates; an industrial park beginning from 1®' April, 1997 and ending on 31®^ March, 2006. The said clause stipulates the beginning point and the ending point. Clause 9(1) of the 2002, Scheme states that in case commencement of industrial park gets delayed by more than one year from the date indicated in the application, a fresh approval was required to avail benefits under the 2002, Scheme. ^

¶17In the present case, the petitioner had moved an application to the Central Government for being notified under clause (iii) to Section80 IA(4) on 23''^ September,2006. On the said date, the 2002, Scheme was not in operation and was not applicable. As noticedabove, the 2002, Scheme as notifiedand published in the Gazette in Clause (3) stipulates that it shall apply to any undertaking which develops; develops and operates; or maintains and operates; an industrial park for the ^ period beginning on 1"' April, 1997 and ending on 31"' March, 2006. Clause 9(1) of the 2002, Scheme quoted above does show that an application/approval could be granted in advance also but the tax benefits under the Act could be availed of only after the number of units indicated in the application were \ located in the industrial park. In the present case, we are not concerned with clause 9(1) of the 2002, Scheme, as the petitionerhad filed an applicationon 22)^^ September,2006, i.e., after 31^' March, 2006. Clause 9(1), therefore, does not help the petitioner. Entitlementto deduction under Section 80 lA read with 2002, Scheme predicates location of specified number of units indicated in the application in the industrial park. In case there was delay of more than one year from the date indicatedin the application,a fresh approval was required. The aforesaid interpretationis in consonance with clause (iii) to Section 80 IA(4). The said clause gives primacy and accepts that an undertaking which is notified in accordance with the scheme framed and notified by the Central Governmentqualifiesfor the said deduction. Thus, in the present case, when an application was filed on 23'^^ September, 2006, there was no scheme in place/operation,which had been framed and notified by the Central Government. The 2002, Scheme had lapsed as it was effective, notified and applicable upto 31®^ March, 2006. The 2002, Scheme was no longer in operation.

¶18It is not possibleto agree with contentionof the petitioner that the second proviso to Section 80 IA(4)(iii) substitutingthe Page of 25 J.- words/date"31"' March, 2006" with "31"' March, 2009" had the effect of modifying or substitutingthe 2002, Scheme and the effect thereof was that the 2002, Scheme continued to remain operative at least till the 2008, Scheme was formulated and notified. This is not what is indicated and stated in the second proviso. The second provisowas separatelyadded and the date stated in Section 80 IA(4)(iii) was not substituted by the new date, i.e., the date 31'^ March, 2006 was not substitutedwith the date 31March, 2009. The idea and purpose behind incorporatingthe second proviso is clear that an undertaking which develops; develops and operates; or maintains and operates; an industrial park, as per the scheme framed and notified by the Central Governmentat the relevanttime shall be entitled to the said deductionfor the period ending 31®' March, 2009. The benefit of the proviso would be given to an undertaking which develops; develops and operates, or maintains and operates; an industrial park in accordancewith the schemeframed and notified after 1®' March, 2006 ending on 31March, 2009 (the date now stand substitutedby FinanceAct No. 2 of 2009 to 31March, 2011). 14 of 25

¶19In viewof the aforesaid interpretation,the contention ofthe petitionerthatthere is any conflictbetweenclause (iii) to Section IA(4) of the Act or 2008, Scheme has been given retrospectiveeffect must fail. As noticed above, there is no conflict between Section 80 lA(4)(iii),2002, Scheme and 2008, Scheme. The 2002, Schemewas valid and in operationtill 31®^ March, 2006 and not thereafter. After 31'^ March, 2006 there was no scheme which was in operation. The requirement of Section 80 IA(4)(iii) is that a scheme should be framed and gazetted and then only benefit can be claimed by an industrial undertakingwhich gets notified underthe scheme. If there was no scheme in operationas the scheme had not been framed or gazetted,no benefitcan be availed of by an undertakingon the basis of a priorscheme,the term and validityof which had come to an end by efflux of time. We may add a caveat, that we are not examining a case where an undertaking had filed an application on or before 31"' March, 2006 but the same was disposed of after 31'' March, 2006. This factum is extremely relevantand has been noticedbelowto distinguishthe judgment of the Bombay High Court in Silver Land Developers (P) WP. (C) Nos. 13825/2009&7699/2010 IV V Limited versus Empowered Committee,

(2011) Taxman.com 41(Bom.)-

¶20Thus, for some time after 1"' April, 2006, there was no scheme which was framed and had been gazetted. A new schemewas framed and gazettedonly on 8^*^ January,2008 and this scheme ,has been implemented with effect from April, 2006. The Central Government can be criticised for this long delay in formulatingand notifyingthe scheme as it is contraryto the principlesof good governanceand is vulnerableto criticism on the ground of creating uncertainty, but this by itself in the factual matrix of the present case and the language of Section 80 lA(4)(iii) cannot and is not a ground to hold that the 2002, Scheme continuedto be in operationtill 8**^ January,2008. The legal position,as stated above, is that with effectfrom 1®' April, 2006 there was no scheme which had been framed and was gazetted. Therefore, no undertakingcould take advantage or benefit of Section 80 IA(4)(iii) of the Act. A new scheme was formulatedon 8^^ January, 2008 and was made applicablewith effectfrom 1®^ April,.2006. The retrospectiveeffectis to give and confer benefit to undertakings covered by the 2008, Scheme. Thus, no benefit has been withdrawn by giving retrospective W.P. (C)Nos.13825/2009&7699/2010 V effect to the 2008, Scheme. Advantage has been conferred on the undertakings,which otherwisethey would not have derived but for the 2008, Scheme. In these circumstances, we are not required to deal with the other contentions raised by the petitioneror the judgments relied upon by the petitioner,viz., Pournami Oil Mills versus State of Kerala, [1987] 165 ITR 57

(SC), Sales Tax Officerversus K.I. Abraham, (1967) 3 SCR 518, Second Income Tax Officerversus M.C.T. Trust, (1976) 102 ITR 138 (Mad), Corporation Bank versus Sarawati Abharawsala, (2009) 1 SCC 540, Baku! Cashew Co. versus STO, (1986) 159 ITR 565 (SC) and Income Tax Officerversus Ponnoose(M.C.), {^970)75 ITR 174 (SC). In the factual matrix of the present case, the aforesaid judgments are not at all applicable.

¶21The factual position in Silver Land Developers (P) Limited(supra) was different. In the said case, the petitioner therein had applied for grant of approval under the 2002, Scheme on 27^'' December,2005 arid the approvalwas granted by the Ministryof Commerceand Industrieson 24'^ July, 2006. In the application, the expected date of commencement of commercial park was stated as 15^'^ March, 2006 and relying WP. (C) Nos. 13825/2009&7699/2010 upon clause 9(1) of the 2002, Scheme, it was the case of the petitioner therein that the date of commencement was extendableupto 15'^ March, 2007. The petitionertherein had submittedan applicationfor grant of occupancy certificateon 8 March, 2007 and the occupancy certificatewas issued on 2 June, 2007 by the Municipal Corporation of Greater Mumbai. The said Municipal Corporationhad clarified and informed the EmpoweredCommitteethat the industrialparkwas readyand fit for occupationon 8^'' March, 2007. In these circumstances,the Division Bench of the Bombay High Court has held that the 2002, Schemewas applicableand the finding of the Empowered Committee that the 2008, Scheme was applicable should be rejected. In paragraph 18 of the said judgment, it has been observedby the BombayHigh Courtas under:- "18. The rival submissions now fall for determination.The object and purpose of Section 801A is to grant a deduction, while computing the total income of the assessee of an amount equal to hundred per cent of the profitsand gains derivedfrom an eligiblebusinessfor ten consecutive assessment years out of fifteen years beginningfrom the year in which inter alia the assessee develops an industrial.park or facility. The eligible businesses to which the provisions are attracted are specified in sub-section(4) of Section 801A. The object and purpose of Section 80IA was to provide an impetus to the growth of infrastructurein the country. Clause (iii) of sub-section (4) of Section 80IA makes eligible an. undertaking which (i) develops; or (ii) develops and operates; or (iii) maintains and operates an industnal park notified by the Central Governmentin accordance W.P. (0) Nos. 13825/2009&7699/2010 PaS® 18 of 25 th nd with the Scheme framed for the period beginning on 1 April 1997 and ending on 31 IVIarch 2006. An undertaking is eligible if it has either developed; or developed and operated; or operated and maintainedan industrial parl< in accordance with the Scheme. The first aspect of the matter which needs emphasis is that clause

(iii) of Section 80IA (4) requires that the Scheme has to be notified for the period between 1st April 1997 and 31 March 2006. The statutory provision does not contain a specificrequirementto the effect that the industrialpark had to be developed on or before 31 March 2006. The requirement is that the industrial park has to be developedin accordancewith the Scheme framed by the Central Government for the period between 1 April 1997 and 31 March 2006. The Scheme which was framed by the Central Government stipulated the requirement for the grant of approval in those cases which did not fall in the automatic approval route. Para 3 of the Scheme lays down the period of operationofthe Scheme. Under Para 3 the Scheme is to be applicable to any undertaking which develops, develops and operates or maintainsand operatesan IndustrialPark for the period beginningon 1 April 1997 and ending on 31 March 2006. Therefore, undoubtedly it was as a result of Para 3 that a requirement to the effect that the undertaking should develop an industrialpark for the period commencingon 1 April 1997 and ending on 31 March 2006 came to be introduced. The Scheme, however, stipulated in Para 9

(1) that in case the commencementof the industrialpark is delayed by more than one yearfrom the date indicated in the application, a fresh approval would have to be obtained to get the benefit of the Act. The last sentence of Para 9 (1) then clarifiedthat this conditionwould also apply to the existing approvalsunder the IndustrialPark Scheme which envisagedthe commissioningof the park. latest by March 31, 2002. Para 9 (1) took notice of the fact that approvals were granted under the previous Scheme which envisaged the commissioningof parks by . 31 March 2002. The new Scheme was notified on 1 April 2002. If 31 March 2002 was to be treated as an absolute cutoffthen it is unlikelythatthe last sentence of Para 9(1) would provide that the condition which was spelt out in the said Para would also apply to existing approvals. ConsequentlyPara 9 of the Scheme did contemplate situations where the commencement of an industrialpark was delayed by more than one year from the date indicatedin the application.The Scheme providesthat in such cases, a fresh approvalwould have to be obtained in order to obtain the benefits under the Act." 19 of 25

¶22The aforesaid observations are in consonance with our findings and interpretationgiven to Section 80 IA(4)(iii), 2002, Scheme and 2008, Scheme.

¶23Learned counsel for the petitioner had drawn our attention to paragraph24 ofthe said judgmentwhich reads as under:- "24. The attention of the Court has also been-drawn to the fact that in fifty cases, approvals have been granted under the Scheme of 2002 beyond 31 March 2006 and as a matter of fact as late as in April 2007. Learned Counsel on behalf of the Revenue has submitted that the Department would seek to revoke those permissions which have been granted in other cases. Be that as it may, for the reasons indicatedearlierwe have come to the conclusion that the basis on which the Empowered Committee has rejected the application filed by the Petitioners is contrary to law and would have to be set aside."

¶24The aforesaid paragraph does not assist or help the contentionof the petitioner. What is stated in the said paragraph is that approvalswere granted under the 2002, Scheme even after 31'^ March, 2006 and as late as in April, 2007.. The said paragraph does not indicate or state the date on which the applications were filed and whether the applications were received before 31®^ March, 2006. During the course of hearing before us, the petitioners were asked whether they had contendedor claimedthatapplicationsreceivedafter31®' March, W.P. (0) Nos. 13825/2009&7699/2010 2006 have been processed and approved under the 2002, Scheme. It was stated that there was no such averment or plea, but it was for the respondent to explain and state. Before us, a list of all pending applicationsas on 3'^'^ June, 2008 downloaded from the website of the respondent has been filed. The said details do not show that any applicationsfiled after 31®^ March, 2006 had been granted approval under the 2002, Scheme.

¶25The plea of promissory estoppel has no merit. The petitioner claims that they had started development of the industrialpark afterobtainingconsent/commencementcertificate in 2005. However, they filed an application only on 23'^^ September, 2006. By that time, the date 31"' March, 2006 mentioned in the Section 80 IA(4)(iii)and the 2002, Scheme had lapsed. The petitionerscould have claimed benefit under the said Section only if they were covered by a new Scheme or in case the Government had decided to extend the 2002, Scheme. As already noticed above, the petitionerswere not covered by the 2008, Scheme and the 2002, Scheme was not extended after 31'^ March, 2006. In fact, the plea based on promissory estoppel has to fail because the petitionerhas not pleaded or stated in what manner and how they had changed their position 21 of 25 to their detriment in view of the alleged promise held out/made. The statute in the present case was clear that there should be a scheme which was framed and gazetted and an undertaking should be notified under the said scheme. The time period or the last date was specifiedi.e. 31®' March, 2006. The petitioner did not apply for notification before the cut of date, i.e., 31®' March, 2006 on which date the 2002, Scheme came to an end. It was submitted on behalf of the petitioner that the doctrine of promissory estoppel should be applied on the basis of correspondence which was exchanged between the petitioner and the Ministry of Commerce and Industries after the applicationfor approvalwas filed on 23'"^ September,2006. By this correspondence, the said Ministry had called for certain details and information which was furnished and given. We do not think doctrineof promissoryestoppel can be applied on the basis of the said letters. No promise was held out in the said letters. Informationand details were called for and it was stated that the matter would be placed before the Empowered Committee after full details were furnished. No promise is decipherable.The respondenthad not held out or promisedthat the 2002, Scheme shall be extended. The aforesaid correspondence does not make out a case and does not show that any promisewas held out and pursuantto the said promise the petitionerhad changed their position. As noticed above, the 2008, Scheme was notifiedon 8'^ January, 2008 and during the period 1"' April, 2006 till 8'^ January, 2008 no scheme was in operationas the same had not been framed and gazetted.This is the statutory requirement and is mandated by Section 80 IA(4). In these circumstances,the Ministry of Commerce and Industriesdid not rejectthe applicationbut had asked for certain information and details before the matter was placed before the Empowered Committee because there was uncertainty and ambiguity. Doubt/uncertaintyis not a promise.

¶26The fact noticed above indicate that the petitioner had filed the applicationfor registrationon 23'^'^ September,2006 afterthe 2002, Scheme had come to an end, as the scheme was applicableonly upto 31"' March, 2006. The industrialparkset up by them was not operational/functionalby 31^^ March, 2006. It became operational on a subsequent date. The completion certificate for the said park issued by the Pune Municipal Corporationis dated 29^^ August, 2007. The petitionercannot, therefore, claim notificationunder the 2002, Scheme. PaSe 23 of 25 A

¶27We may note that the policy dated 8^^ January, 2008 has not been challenged before us on merits. The ground of challenge before us was limited to the retrospectiveoperation and to the extent that there is conflict between the 2008 scheme and the parent Act, i.e., Section 80 lA (4) as the proviso had extended the period ofthe 2002 policy. We have rejected these contentions. A policy decision, though not beyond the scope and power of judicial review, can be interferedwith when it is wholly irrational or inconsistentwith the express or implied provisionsof the statute. Governmentis normallyfree to modify, amend or withdraw fiscal benefits from time to time and they have right to implementthe policydecisions. Sometimes,there can be radical differenceof opinionon views but that cannot be a groundto set aside/quasha policydecision. Apolicydecision is quashed when there is something overwhelming and it is apparentthat the decision is completelyirrationalor as stated above is inconsistentwith the express or implied provisionsof the statute.

¶28In view of the aforesaid position,we do not find any merit in the presentwrit petitionsand the same are dismissed. The interim order is vacated. Liberty is, however, granted to the 24 of 25 petitionerto file an appeal againstthe assessmentorder dated 22""^ October,2010 beforethe appellate authorityon merits, but the petitionerwould not be entitledto questionthe validityof the letters/ordersdated 28'^ July, 2009 and 8^*^ October,2008 in the appellate proceedings or claim that the petitioner has been registeredunderSection80 IA(4)(iii)of the Act. In the facts and circumstances of the case, there will be no order as to costs. 24^' JANUARY, 2012 VKR -sd- (SANJIVKHANNA) JUDGE -sd- ( R.V. EASWAR) JUDGE P^ge 25 of 25